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2013 – YEAR IN REVIEW

OUR VISION:

SUCCESS BASED ON LONG LASTING

RELATIONSHIPS FORGED IN INTEGRITY,

EXCELLENCE, COMMITMENT AND TEAMWORK.

Happy New Year from your friends at FHMBK! We are very thankful for the many blessings we have received this past year and we look forward to many more in the coming year. We are also pleased to provide you with our 2013 Year In Review newsletter highlighting information from 2013 we hope will be beneficial to you in the coming year.

VICTORY BEFORE THE U.S. SUPREME COURT

THOMAS P. BRANDT and JOSHUA SKINNER obtained a victory before the U.S. Supreme Court. The Supreme Court denied Plaintiff’s petition for writ of certiorari and, as a result, confirmed the victory we had obtained before the Fifth Circuit. This case involved a grade dispute. The Plaintiff, a former college student, sued his former professor over a grade she had given him in an English course. We argued successfully that the university professor should be granted qualified immunity from such a claim.

VICTORY BEFORE THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THOMAS BRANDT and JOSHUA SKINNER obtained a victory on behalf of a college professor who was sued for allegedly violating a student’s Due Process rights. This case, which arose out of a grade dispute, was orally argued by Mr. Brandt in New Orleans on December 5, 2012. The Fifth Circuit agreed with our arguments and reversed the lower court’s decision which had denied the professor’s motion to dismiss based on qualified immunity.

The Plaintiff claimed he had a property interest in: the summer 2009 English course; the grade he received in it; and obtaining a four-year education. He claimed that he had a liberty interest in: his good name; his reputation; and continuing to play football for the University of New Mexico. The three judge panel of the Fifth Circuit stated that the Fifth Circuit “has not held that college academic decisions implicate property or liberty interests, entitling a student to constitutional due-process protections.” The Fifth Circuit held that the Plaintiff had neither alleged a denial of access to an education, even on a temporary basis, nor placed in legitimate doubt the academic nature of the professor’s actions. The Fifth Circuit stated that the Plaintiff’s asserted property or liberty interests were not established “beyond debate” and that, therefore, the Professor was entitled to qualified immunity.

VICTORY IN THE CANDY CANE CASE

THOMAS BRANDT and JOSHUA SKINNER obtained a victory for their client, an elementary school principal, who had been sued in the famous “Candy Cane Case.”

On February 13, 2013, United States District Judge Richard Schell issued an order adopting the report and recommendation of the United States Magistrate Judge. The Magistrate’s report and recommendation, issued September 25, 2012, recommended that the last remaining individual Defendant, an elementary school principal, be dismissed from the case. Judge Schell adopted the findings and conclusions of the Magistrate Judge and ordered that the claims against the Defendant be dismissed with prejudice. The Plaintiff has appealed this decision. If the district court’s decision is upheld, it will mean that all of the individual defendants represented by FHMBK will have been dismissed from this suit, representing a complete victory on behalf of all of our clients in this case.

VICTORY IN KOUNTZE CHEERLEADER CASE

THOMAS BRANDT, JOSHUA SKINNER, and JOHN HUSTED obtained a significant victory in the Kountze Cheerleader case. This victory involved the dismissal with prejudice of all claims brought against the former Superintendent of Kountze ISD, Mr. Kevin Weldon. On February 25, 2013, the Plaintiffs in Matthews v. Kountze ISD and Kevin Weldon filed a notice of non-suit with prejudice as to former Kountze ISD superintendent Kevin Weldon. The Plaintiffs’ decision to dismiss Weldon from the suit came after FHMBK attorneys filed and argued a Motion for Summary Judgment on behalf of Mr. Weldon. We are very pleased to have obtained this complete victory for our client, Mr. Weldon. The case against the school district is continuing on appeal.

APPELLATE VICTORY REGARDING SEX DISCRIMINATION

THOMAS P. BRANDT, FRANCISCO J. VALENZUELAand LAURA O’LEARY obtained an appellate victory for a north Texas school district in an employment discrimination claim. The plaintiff alleged that she was subjected to discrimination based upon her sex. The trial court denied our motion for summary judgment and we appealed. On June 3, 2013 the Dallas Court of Appeals reversed the trial court’s decision and dismissed the plaintiff’s claim of sex discrimination.

ORAL ARGUMENT REGARDING DISABILITY DISCRIMINATION AND BULLYING

On December 4, 2013, THOMAS P. BRANDT orally argued a disability-discrimination case pending before the Fifth Circuit in New Orleans. The appeal involves the allegation that a school district failed to adequately protect a disabled child from bullying and that the bullying ultimately led to the death of the child. The district court granted summary judgment to the school district, dismissing the claims, and the plaintiffs appealed.

SPEECHES AND PUBLICATIONS

THOMAS P. BRANDT and co-presenter, former Kountze ISD Superintendent, Kevin Weldon, gave a presentation at the 2013 TASA/TASB Convention titled Hell Hath No Fury: A guided tour through the Kountze Cheerleader case. The TASA/TASB Convention was held in Dallas on September 27 – 29, 2013.

THOMAS P. BRANDT and LAURA O’LEARY co-authored a paper with Lenore Silverman of the law firm of Fagen, Friedman, and Fulfrost, LLP of Oakland, California, on the subject of Working with Child Witnesses. The paper was presented at the NSBA’s Counsel of School Attorney’s School Law Practice Seminar held in Nashville October 10 – 12, 2013.

On February 21, 2013, FHMBK attorney FRANK VALENZUELA participated in a joint presentation to the University of Texas School Law Conference in Austin titled “Title VII v. TCHRA: Who Cares?” which addressed the differences between federal and state law remedies in employment cases.

On February 7, 2013, THOMAS P. BRANDT participated in a panel discussion at the ABA Midyear Meeting held in Dallas entitled GOD, THE LAW & THE SCHOOLHOUSE: Religion in the Government Schools/Government in the Religious Schools. The panelists discussed legal issues related to religious expression in public schools as well as the public’s support of religious schools. Click here to read Mr. Brandt’s presentation paper.

THOMAS P. BRANDT authored an article which will appear in the March, 2013 issue of the Texas School Administrators’ Legal Digest. You may read his article, “Render unto Caesar: Candy Canes, Cheerleaders, and the Ten Lessons I Have Learned in Religious Liberty Litigation” by clicking here.

LAURA O’LEARY spoke at the annual conference of the Texas Council of Administrators of Special Education in Austin on July 16, 2013. Ms. O’Leary and her co-presenter, special education consultant Cindy Michaels, addressed the conference on the topic of responses to disability-based harassment or bullying in the school context. Click here for a link to the paper they presented.

JOSHUA SKINNER spoke at the 2013 State Bar of Texas Government Law Boot Camp on July 17 on the topic of “The Basics of Qualified Immunity.” Click here for a link to Mr. Skinner’s paper.

THOMAS P. BRANDT spoke at the State Bar’s Annual Suing and Defending Governmental Entities seminar in Austin on July 19, 2013 on the topic of Schools as Incubators of Constitution Litigation. Click here for a link to Mr. Brandt’s paper.

FRANCISCO J. VALENZUELA spoke at the State Bar’s Annual Suing and Defending Governmental Entities seminar in Austin on July 18, 2012 on the topic of the differences between Texas and federal employment law claims. Click here for a link to Mr. Valenzuela’s paper.

THOMAS P. BRANDT spoke at the Texas Bar School Law Section Retreat in San Antonio on Student Civil Rights Litigation on July 19, 2013.

HONORS AND ANNOUNCEMENTS

FHMBK had the honor of announcing that accomplished attorney Don Martinson had earned selection in The Best Lawyers in America for 2014 based on his work in insurance law. For more information about his honor, please click here.

FHMBK firm members Joshua A. Skinner and Francisco J. Valenzuela again earned recognition as two of the state’s top young lawyers with selections to the 2013 Texas Rising Stars list. This is the fourth consecutive selection to the exclusive annual listing for both attorneys. For more details, please click here.

FHMBK had the honor of announcing the return of civil litigator Stephen D. Henninger as a member of the firm’s Local Government Defense Law practice. Steve previously worked as a member of the firm from 1999 to 2007. To read the media release regarding his return, click here.

UPCOMING EVENTS – 2014

On January 9, 2014, DON MARTINSON will argue a case pending before the Supreme Court of Texas. The appeal arises from a contract between Texas cotton farmers and a national cotton buyer that includes a mandatory arbitration agreement. The court of appeals affirmed the trial court’s ruling that the arbitration agreement in the contract was substantively unconscionable, and it concluded that the cotton buyer had waived its right to ask that any unconscionable terms in the arbitration agreement be severed by failing to raise the issue in the trial court. The issues before the Supreme Court of Texas are: (1) whether a provision in an arbitration agreement can be held to be unconscionable without a showing of actual prejudice and (2) whether the right to severance can be waived if it is not raised in the trial court by the party seeking to sever the unconscionable provisions and enforce the remaining provisions of an arbitration agreement. The case being argued is Venture Cotton Cooperative et al. v. Freeman et al, case number 13-0122, in the Supreme Court of Texas.

On February 5, 2014, THOMAS P. BRANDT will orally argue the latest installment of the Candy Cane Case before the Fifth Circuit in New Orleans. This appeal involves a parent-to-parent free speech claim brought by Doug Morgan against elementary school principal Lynn Swanson. Mr. Morgan contends that Ms. Swanson violated his rights when she told him that he would need to place his “Legend of the Candy Cane” laminated bookmarks on a table in the school library as opposed to passing them out to other parents at the school-sponsored party in the 3rd grade classroom. The district court granted Ms. Swanson qualified immunity and Mr. Morgan appealed.